Don’t Resurrect the Law of the Sea Treaty
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However, when countries perceive their vital national interests to be at stake—Great Britain in World War I and Iran during its war with Iraq in the 1980s, for instance—they rarely allow juridical niceties to stop them from interdicting or destroying international commerce. In a crisis, most maritime nations are ready to sacrifice abstract legal norms in pursuit of important policy goals.
Indeed, LOST membership has not pre- vented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed by others to be exces- sive—and, thus, illegitimate—under the treaty. In testimony last October, Admiral Mullen warned that the benefits he believed were derived from treaty ratification did not “sug- gest that countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention.”55
Consider the luckless USS Pueblo. Inter- national law did not prevent North Korea from illegally seizing the intelligence ship; had there been a LOST in 1968, it would have offered the Pueblo no additional protection. America was similarly unaided by international law in its con- frontation with China over the U.S. EP-3 sur- veillance plane operating in international air- space in 2001.
Schachte contends that “if you look at the Persian Gulf situation, for example, we didn’t have problems with Iran or Oman in using the Strait of Hormuz, because they recognized that the language of the treaty was clear.”58 Yet Iran, which bombed Kuwaiti oil tankers during its war with Iraq, is unlikely to be deterred by an international treaty, however unambiguous its provisions. If Iran, or any other maritime state, believed it to be in its vital interest to prevent the passage of U.S. ships, then its signature on the LOST would not likely prevent it from act- ing: rather, the country would be primarily concerned about America’s willingness and ability to force passage. And in a world from which the Soviet Union has disappeared, the Russian navy is rusting in port, China has yet to develop a blue-water navy, and Third World conflicts are no longer viewed as threatening the United States, Washington is rarely going to have to fight its way through contested international waterways. Countries will be inclined to let the ships pass rather than face the wrath of the U.S. Navy.
Convention advocates further contend that even if the LOST is flawed, only participation in the treaty regime can prevent future damaging interpretations, amendments, and tribunal decisions. Bernard Oxman, a University of Miami Law School professor who also serves as a judge ad hoc on the International Tribunal for the Law of the Sea, contends that “what we gain by becoming party is increased influence over” the interpretation of the convention’s rules.63 Senator Lugar worries that failing to ratify the treaty means the United States could “forfeit our seat at the table of institutions that will make decisions about the use of the oceans.”64 David Sandalow of the Brookings Institution warns that if the United States stays out of the LOST, it risks losing some of its existing navigation freedoms through “backsliding by nations that have put aside excessive maritime claims from years past.”65
However, America’s friends and allies, in both Asia and Europe, have an incentive, with or without the LOST, to protect navigational freedom. So long as Washington maintains good relations with them—admittedly a more difficult undertaking because of strains of the war in Iraq—it should be able to defend U.S. interests indirectly through surrogates. If the nations that benefit from navigational freedom are unwilling to aid the United States while Washington is outside the LOST, they are unlikely to prove any more steadfast with Washington inside it. Assistant Secretary Turner admitted as much when he told the Senate Foreign Relations Committee in October 2003 that the United States had “had considerable success” in asserting “its oceans interests as a non-party to the Convention.”66
Critics of the U.S. refusal to sign in 1982 predicted ocean chaos, but as noted earlier, not once has an American ship been denied passage. No country has had either the incentive or the ability to interfere with U.S. ship- ping, and, if one or more had, the LOST would have been of little help. In 1998 treaty supporters agitated for immediate ratification because several special exemptions for the United States were set to expire. Washington did not ratify and no one seemed to notice.
Ironically, problems cited by U.S. shippers -- creation of a “particularly sensitive sea area” off of Europe, for instance—have involved alleged misinterpretations of the treaty, not America’s lack of membership.67 And foreign shippers have attempted to use the LOST to escape application of U.S. environmental controls.68 Joining the treaty would provide no panacea.
Although American ratification of the LOST would not be enough to resurrect the NIEO, it would subject the United States to the treaty’s restrictive regulatory regime and enshrine in international law some very ugly precedents. One is that the nation–states (not peoples) of the world collectively own all the unclaimed wealth of this earth. Granting ownership and control to petty autocracies that have no relationship to the resources and no ability to contribute anything to their development makes neither moral nor prac- tical sense. Much better on both counts is the simple Lockean notion that mixing one’s labor with resources—by developing complex machinery capable of scouring the ocean floor, for instance—grants one a property interest in them.
The Lockean standard would better suit the interests of developing peoples. The LOST may purport to promote international justice, fairness, and cooperation, but, in fact, it advances none of those things. Rather, it rais- es to the status of international law self-indul- gent claims of ownership to be secured through an oligarchy of international bureau- crats, diplomats, and lawyers. And the treaty’s specific provisions still mandate global redistribution of resources, create a monopolistic public mining entity, restrict competition, and require the transfer of technology. Those principles, even in the attenuated form of the revised treaty, reflect the sort of statist panaceas that were discredited by the historical wave that swept away Soviet-style communism.
Finally, the LOST may encourage the UN to venture into unexplored territory. The UN’s Division for Ocean Affairs and the Law of the Sea boldly announced that the LOST “is not . . . a static instrument, but rather a dynamic and evolving body of law that must be vigorously safeguarded and its implementation aggressively advanced.”69 If international jurists exhibit the same creativity as shown by some judges domes- tically, the LOST might prove to be dangerously dynamic.
In 2001 Douglas Stevenson, representing the Seamen’s Church Institute, an advocacy group for mariners, complained about “trends that erode traditional seafarers’ rights,” such as that to medical care, as well as to protection from abandonment by insolvent and irresponsible ship owners. Stevenson explained, “When mariners’ health, safety or welfare is in jeopardy, we look to the United Nations Convention on the Law of the Sea to protect them.”70 There are obviously real and tragic abuses of seamen, but what the “international community” should do as part of the LOST about such issues is not obvious. Washington might find itself facing unexpected obligations if it signs on.
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